PALLOTTA v. COMMISSIONER OF SOCIAL SECURITY

Filing 22

OPINION fld. Signed by Judge Esther Salas on 10/7/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAS N. PALLOTTA,
Plaintiff,
Civil Action No. 14-02561 (ES)
v.
OPINION
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.
SALAS, DISTRICT JUDGE
Pending before the Court is the motion to dismiss filed by Defendant Commissioner of
Social Security. (D.E. No. 17). Plaintiff opposes the motion. (D.E. Nos. 19, 20). The Court
decides the motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For
the reasons stated below, the Court GRANTS Defendants’ motion to dismiss.
I.

FACTUAL BACKGROUND & PROCEDURAL HISTORY
On July 10, 2006, the Social Security Administration (“SSA”) mailed pro se Plaintiff

Thomas N. Pallotta a notice regarding his eligibility for Social Security benefits. (D.E. No. 18,
Defendant’s Moving Brief (“Def. Mov. Br.”) at 1). On that same day, Plaintiff was notified that
he was not eligible for Supplemental Security Income (“SSI”) due to excess resources. (Id.).
On January 19, 2013, the SSA notified Plaintiff that he would receive $397 in monthly
retirement benefits. (Id.; D.E. No. 18-1, Declaration of Kathie Hart (“Hart Decl.”) Ex. 3).
However, on March 19, 2013, Plaintiff indicated that he wanted to appeal the January 19, 2013
decision regarding his early retirement. (Def. Mov. Br. at 1; Hart Decl. Ex. 4). As such, Plaintiff

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requested a reconsideration form. (Def. Mov. Br. at 1; Hart Decl. Ex. 4). The SSA mailed Plaintiff
a Request for Reconsideration form on March 22, 2013. (Def. Mov. Br. at 1; Hart Decl. Ex. 5).
Despite requesting a reconsideration form, Plaintiff instituted the instant civil action on
April 22, 2014. (D.E. No. 1). On January 28, 2015, the Court directed Plaintiff to serve a copy of
the Summons and Complaint upon Defendant within sixty days. (D.E. No. 14). On June 11, 2015,
Defendant filed the instant motion to dismiss. (D.E. No. 17). Plaintiff filed two letters in
opposition to Defendant’s motion to dismiss. (D.E. Nos. 19, 20).
The matter is now ripe for resolution.
II.

DISCUSSION
Plaintiff seeks for the Court to (i) review the SSA’s determination of his ineligibility for

Social Security benefits; (ii) compel the SSA to send Plaintiff a reconsideration determination; and
(iii) compel the SSA to allow Plaintiff to proceed to the hearing and appeals council. (D.E. No. 1,
Complaint (“Compl.”) at 2). Defendant argues that the District Court lacks jurisdiction. (Def.
Mov. Br. at 3). In particular, Defendant asserts that “[s]ince Plaintiff has not had a hearing or
received a final decision, he has not exhausted his administrative remedies or obtained a judicially
reviewable ‘final decision after a hearing.’”

(Id. (citing 20 C.F.R. §§ 406.900(a)(5),

416.1400(a)(5)).
In claims arising under the Social Security Act, judicial review is permitted only in
accordance with 42 U.S.C. § 405(g). The Social Security Act establishes the following relevant
jurisdictional basis for judicial review of Social Security cases:
Any individual, after any final decision of the Commissioner of Social Security made
after a hearing to which he was a party, irrespective of the amount in controversy,
may obtain a review of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within such further time as the
Commissioner of Social Security may allow.

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42 U.S.C. § 405(g) (emphasis added).
The SSA has promulgated a four step administrative review process to determine
claimants’ rights under the Social Security Act. See 20 C.F.R. § 404.900(a). The review process
is as follows:
(1) Initial determination. This is a determination we make about your entitlement
or your continuing entitlement to benefits or about any other matter . . . that
gives you a right to further review.
(2) Reconsideration. If you are dissatisfied with an initial determination, you may
ask us to reconsider it.
(3) Hearing before an administrative law judge. If you are dissatisfied with the
reconsideration determination, you may request a hearing before an
administrative law judge.
(4) Appeals Council review. If you are dissatisfied with the decision of the
administrative law judge, you may request that the Appeals Council review that
decision.
20 C.F.R. § 404.900(a)(1)-(4). The SSA goes on to state that, “[w]hen you have completed the
steps of the administrative review process listed in paragraphs (a)(1) through (a)(4) of this section,
we will have made our final decision. If you are dissatisfied with our final decision, you may
request judicial review by filing an action in a Federal district court.” 20 C.F.R. § 404.900(a)(5).
Here, the Court concludes that it lacks jurisdiction over the instant case for Plaintiff’s
failure to receive a “final decision of the Commissioner.” To begin, Plaintiff submitted the
Complaint “under the provisions of Section 205(g) of the Social Security, 42 U.S.C. § 405(g), to
review a final decision of the Commissioner.” (Compl. ¶ 4). As previously noted, however,
Plaintiff has not received a final decision and thus has not exhausted his administrative remedies.
(Def. Mov. Br. at 3).
Although Plaintiff’s Complaint repeatedly asserted that the Court has jurisdiction under
§ 405(g), Plaintiff concedes that he has not exhausted the four step administrative review process.

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Indeed, Plaintiff is cognizant of the four step review process. (See Compl. at 1 (“SSA is required
to first issue a reconsideration determination, and the hearing office is required to first issue a
hearing decision, before the Appeals Council can issue a final decision made after a hearing.”).
Nevertheless, Plaintiff requests that the SSA send him a reconsideration determination so that he
can proceed to a hearing and Appeals Council review—thus conceding that he has not fully
exhausted the administrative review process. (Compl. at 2).
Based on Plaintiff’s representations and the documentation submitted in support of
Defendant’s motion to dismiss, it is clear that Plaintiff has not exhausted all of the proper
administrative steps. Indeed, a claimant may not seek judicial review until after Appeal Council
review. See 20 C.F.R. § 404.900(a). But, there is no evidence an Appeals Council review has
occurred. Rather, it would appear that Plaintiff filed for reconsideration and is waiting for a
reconsideration determination from the SSA.
Given that Plaintiff has not received a final decision from the Commissioner of Social
Security, the Court lacks jurisdiction under 42 U.S.C. § 405(g). Accordingly, the Court must
dismiss the instant case.
To the extent Plaintiff is attempted to assert a due process claim, he has not properly done
so. Plaintiff does not raise due process concerns in the Complaint. Rather, Plaintiff raises due
process concerns for the first time in opposition to Defendant’s motion to dismiss. (See D.E. No.
19). However, it would still appear that Plaintiff’s claims fall under 42 U.S.C. § 405(g) because
Plaintiff indicates that he “filed for judicial review because under SSA due process law [he] is
entitled to disability benefits . . . .” (Id. at 1). Thus, it would appear that Plaintiff takes issue with
a prior disability determination. In order for the court to review such determination, Plaintiff must
exhaust the proper administrative remedies.

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As such, the Court concludes that it lacks jurisdiction over the instant case. Plaintiff may
file a motion to reopen the instant case should he exhaust the proper administrative remedies.
V.

CONCLUSION
Accordingly, the Court grants Defendants’ motion to dismiss without prejudice. An

appropriate Order accompanies this Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.

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